to go over it, it was ruled, that it was an implied condition of the agreement that the tenant should permit persons applying for the farm to go over it, and that having refused to do so, the agreement was at an end, and the landlord might proceed by ejectment to recover the farm immediately after Michaelmas, 1835, although no new tenant was obtained. (Doe v. Hunt, 1 Mees. & Wels. R. 690.) Where, after the expiration of a written notice to quit a coal mine, given by the tenants, they continued for two months working out certain portions of the coal which they considered it was venal for the tenants to take on abandoning such a work, it was decided to be a question for the jury, whether or not the tenants, in remaining for two months, intended to waive the notice, and continue the tenancy. (James v. Shears, 4 Adolph. & Ell. R. 832.) But it has been held by the courts in this country, that merely permitting the tenant to remain in possession after the expiration of notice is not a waiver of the notice. (Boggs v. Black, 1 Binney's R. 333. Vide also Hemphill v. Teeis, 4 Watts & Serg. R. 535.)

Where a tenancy from year to year has been regularly determined by a notice to quit, the mere accidental detention of the key by the tenant (who has quitted the premises and removed his goods) for two days beyond the expiration of the term, is very properly held not to amount to a waiver of the notice, so as to make the tenant liable to pay for the use and occupation of the premises for another quarter. (Gray v. Bompas, 2 Com. B. R. N. S. 520. Same Case, 103 Eng. C. L. R. 517, 519.)

These cases show very clearly, that while there are certain acts of the landlord which cannot be qualified, and must of necessity be taken as a confirmation of the tenancy, and must therefore be regarded as a waiver of the notice, in most instances it is all a matter of evidence for the jury to determine what was the intention and understanding of the parties, under the circumstances of each particular case.

Where a tenancy from year to year subsists between the parties, an ejectment cannot be maintained on a parol notice to quit at a shorter period than half a year, or expiring at a wrong period of the tenancy, notwithstanding the assent of the tenant to such notice, unless such assent be in writing; because the notice being insufficient in itself to determine the tenant's interest, his assent can only make it operative as a surrender of the term; and as

such surrender is not by operation of law, but an actual surrender by agreement between the parties, it is void by the English statute of frauds, which requires that such surrender should be in writing. This is the rule as gathered from the authorities by Mr. Adams, and it is applicable in this country in those states where similar statutes exist. (Adams on Eject. 155. Doe v. Johnson, 1 McLeland & Yonge's R. 141. Johnson v. Huddlestone, 4 Barn. &

Cres. R. 922.)

As has been remarked in another place, the relation of landlord and tenant is mutual, and hence the rules respecting notices to quit, when given by tenants, are similar, mutatis mutandis, to those by which notices from landlords are governed. (Doe v. Browne, 8 East's R. 165.)

It is unnecessary to dwell longer upon the subject of notices to quit, and the rules and principles governing the same, as the large number and variety of authorities considered will enable the practitioner to find a guide and a precedent for almost any case that may arise.

CHAPTER XIIL

THE ACTION OF EJECTMENT AS BETWEEN LANDLORD AND TENANT-TERMINATION OF A TENANCY BY THE NON-PAYMENT OF RENT-OF THE WAIVER OF THE FORFEITURE OF THE ESTATE FOR NON-PAYMENT OF RENT.

THE termination of a tenancy by the non-payment of rent, or the breach of a covenant or condition, arising under the agreement between the parties, and the right to terminate such tenancy for that reason, very seldom occurs but where the tenant has a written lease for a determinate period. The right to terminate a tenancy from year to year, and the like, by a notice to quit, is given by the common law, while in this case, the right is reserved in the demise itself.

An actual entry upon lands was necessary under the old practice before an ejectment could be maintained, and the claimant's title had to be of such a nature as to render such an entry lawful. Consequently, where there was a lease for years, the right of the possession of the demised premises was thereby transferred to the tenant, and the landlord could not legally enter upon the land

during the continuance of the term, although the tenant might neglect to pay the rent secured, or otherwise disregard the conditions of the lease. As a means of obviating this difficulty, it became the practice of landlords to insert in their leases a proviso declaring the lease forfeited if the rent remained unpaid for a specified time after it became due, or if any other particular covenant of the lease was broken by the lessee, and empowering the landlord in such cases to re-enter upon and re-occupy the land. (Adams on Eject. 157.)

When these provisions in leases were first introduced, the practice required actual entries to be made in these, as in all other cases, before advantage could be taken by ejectment of the forfeiture of the lease. This useless form was long since abolished in England and in most of the American states; but the right to make the entry is, of course, necessary, and, therefore, the provisos in the leases are continued to the present day in their ancient form. (Little v. Heaton, 1 Salk. R. 358. Goodright v. Cater, 2 Doug. R. 477. Anonymous, 1 Vent. R. 248. Wither v. Gibson, 3 Keb. R. 218.) The questions arising under these provisos in leases authorizing a re-entry upon the premises in case of non-performance of covenants and conditions, are of considerable importance, and deserve a careful examination.

I. The principle may be obvious, but it may with propriety be stated, that the landlord, having the jus disponendi, may annex whatever conditions he pleases to his grant, provided they be neither contrary to the laws of the state, nor to the principles of nature, or public policy; and it is by these general maxims persons must be guided when called upon to consider the validity of any particular covenant in a lease.

Limitations, conditions and covenants may all be found in the same lease, but there is in some respects, a wide distinction between them; a limitation determines the estate when the period of limitation arrives, without entry or claim. Of this element in the lease, nothing need be said here. A condition does not defeat the estate until entry by the grantor or lessor, or his heirs; and upon entry, the grantor or lessor is in as of his former estate. It is an express qualification of the estate contained in the lease, whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition. The instances of conditions which now most frequently

arise in practice are those contained in leases or grants between lessor and lessee, and are principally conditions subsequent, provided for in the several clauses of re-entry in case of a breach of any stipulation in the lease.

A covenant is a mutual promise contained in the deed or lease between the lessor and lessee, to do or forbear doing a specific act or specific acts; a condition and a covenant are frequently created in a lease by the same form of words, and the distinction between the two is illustrated by the case put by Coke. When the proviso comes alone it is a condition; but he says if a man by indenture lets lands for years, "provided always, and it is covenanted and agreed between the said parties, that the lessee should not alien;" this is a condition by force of the proviso, and a covenant by force of the other words. (1 Inst. 203 b.) In case the condition is broken, the lessee may elect to which he will resort, for he cannot have both, as they are incompatible remedies.

If an express condition in a lease be impossible at the time of its creation, or afterward becomes impossible by the act of God or the act of the lessor himself, or if the same be contrary to law, or repugnant to the nature of the estate, it will not be binding; in which case, if the condition be a condition subsequent, that is to be performed after the estate is vested, the estate will become absolute in the tenant; for it is well said, that he has by the lease, in such case, an estate vested in him, which cannot be defeated afterward by a condition either impossible, illegal or repugnant. But if the condition be precedent, or to be performed before the estate vests, and the same be void for illegality or repugnancy, the void condition being precedent, the estate which depends thereon will be also void, and the lessee will take nothing by the grant; for he has no estate until the condition be performed. (2 Black. Com. 156, 157. Coke's Litt. 206.)

All the instances of conditions against law, in a proper sense, are reducible under one of three heads: 1. To do something that is malum in se, or malum prohibitum. 2. To omit the doing of something that is a duty. 3. To encourage such crimes or omissions. (Mitchell v. Reynolds, 1 P. Wms. R. 189.) Questions of this kind very seldom arise under a lease, but the principle will apply to a lease.

Repugnant conditions are either repugnant to the language of the grant, as a condition in a grant to the grantee and his heirs,

that the heirs should not inherit; or they are repugnant to reason, as a condition in the conveyance of a farm, that the grantor should not put a weather-cock on the barn, or any other absurd condition, the observance of which would not be of any advantage to the grantor. (Roe v. Galliers, 2 Term R. 133.) Courts of justice will not enforce a condition, the enforcement of which may be of injury to the grantee, and cannot benefit the grantor, or any one else. The law takes cognizance only of property, and rights and wrongs. It will not enforce idle conditions or contracts, from the enforcement of which no one can derive advantage. (Vide Newkirk v. Newkirk, 2 Caines' R. 345.) But although a condition, to be valid, must not be idle and useless, it need not be the grantor who is to be benefited by its performance; it is sufficient if the performance may be beneficial to some one. (Bowen v. Bowen, 18 Conn. R. 535. Stuyvesant v. Mayor of New York, 11 Paige's R. 414.) These principles are called into requisition more frequently in connection with conveyances of the fee than with leases, and yet they may apply to conditions in a demise.

A covenant by a lessor, that, if the lessor or his assigns shall be minded to sell or dispose of their interest, they may do so, first giving the pre-emption to the lessee, and paying one-tenth of the purchase money to him; provided, that, if these be not done, the lease shall be forfeited, has been held to be valid; and extends not only to an immediate assignment by the lessor, but to his assignee, either by operation of law or voluntary sale. And if the latter assign, without offering the pre-emption, and paying the tenth of the money, the lease is forfeited. (Jackson v. Groat, 7 Cow. R. 285. And vide Jackson v. Schutz, 18 Johns. R. 174.) While the courts will not create forfeitures by intendment, they will always enforce the contracts of parties according to their plain provisions.

In estates for lives or years, conditions in restraint of alienation are lawful. The books are full of cases in which they have been sanctioned in England. (Platt on Covenants, 404.) And the same doctrine has been repeatedly recognized in the American states. Covenants and conditions in restraint of alienation, have been repeatedly held lawful and binding between landlord and tenant. (Jackson v. Silvernail, 15 Johns. R. 278. Jackson v. Shute, 18 ib. 174.) Covenants of this description, however, have always been construed by courts of law with the utmost jealousy to prevent the restraint from going beyond the express stipulation